EMPLOYERS BEWARE! DISMISSAL OF WORKERS PARTAKING IN AN UNPROTECTED STRIKE MIGHT BE UNFAIR DISMISSAL.

Employers should seriously consider taking legal advice before making a decision to dismiss employees partaking in an unprotected strike, which could lead to substantial financial consequences for the employer.

In a reported Labour Court judgment delivered on 20 February 2014, National Union of Metalworkers & Another v Lectropower (Pty) Ltd (case number JS119/13), the Court had to consider whether the dismissal of 17 employees that took part in an unprotected strike, was substantively fair.

 

The dispute between the parties arose after the employees provided the employer with a list of grievances, including that a manager be removed from his post.  Thereafter the union declared a dispute.  The employer set up a grievance hearing but failed to give advance notice of the meeting or its purpose to the union representatives.  The three shop stewards that attended the grievance meeting demanded that the manager be removed, failing which the employees will embark on a strike.  After the grievance meeting, the shop stewards were handed letters of dismissal.  As a result of the dismissal of the three shop stewards, the employees refused to work or leave the premises for the rest of that day.  The next morning the employer initially refused to allow the employees back onto the premises.  Later an ultimatum was given to the employees to return to work by 12:00, failing which they will be automatically dismissed.  At 13:45 the employees who had not returned to work, were handed dismissal letters.  Two of the shop stewards threatened to burn down the vehicles of those employees who did not want to join the strike.  Every day during the strike the dismissed employees gathered outside the premises where they played cards and drank beer.  During the strike an employee was arrested, and later convicted, for malicious damage to property after he punctured the tyres of vehicles belonging to members of staff.

 

The Court stated unequivocally that reinstatement would not be an appropriate remedy in circumstances where employees engage in misconduct, this includes violence, during a strike, and the Court held as follows:

 

Employees who misconduct themselves during a strike, protected or unprotected, ought not to expect this court to come to their assistance in any subsequent litigation, let alone order their reinstatement. Regrettably, intimidation, assault and damage to property have come to characterise strikes to the extent that they appear to be considered an inevitable consequence and an integral component of the exercise of the right to strike. This court should express its disapproval of any act of misconduct committed during the course of a strike and which impacts materially and negatively on the rights of the employer and those employees who elect not to participate in the strike…for the above reasons, I intend to make no order of reinstatement or compensation…

The Court found that the employer’s conduct was the cause of the strike as it failed to engage in any meaningful endeavour to resolve the crises that it had brought about and its decision to dismiss was precipitate.  The employees were reinstated, but not those who had misconducted themselves during the strike.

By

Lizelle Marx

lizelle@dyason.co.za

WHAT CONSTITUTES DEEMED KNOWLEDGE IN TERMS OF SECTION 1 (3) OF THE PRESCRIPTION ACT, WITH REFERENCE TO THE CASE OF LONI V MEC FOR DEPARTMENT OF HEALTH EASTERN CAPE, 2018 ZACC 2

Section 12 (3) of the Prescription Act 68 of 1969 provides that “a debt shall not deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises, provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care” .

August 1999 Mr. Loni, the applicant was admitted at the Ceceile Makiwane Hospital after suffering a gunshot wound to his left Buttock, which shattered his left femur. He was given injection and later x-rays were taken. On 23 August 1999, he underwent an operation to insert a plate and screws on his femur and during the operation the bullet was not removed. He was then discharged and given painkillers and most importantly his medical file to attend to a clinic for further care. Thereafter he made several re-visits to the clinic as he was experiencing pain and the wound was oozing pus.

February 2000 he returned to the hospital, at this point he had started limping, he was informed that he was fine and should rather use a crutch instead of two. The gun wound eventually healed, however the operation took longer.

December 2000 Mr. Loni attended an initiation school and whilst there his left leg became swollen and he somehow managed to remove the bullet himself and later returned to the hospital and he was informed that he was fine, in fact he must exercise and walk more.

Forward to 2008, the applicant had secured employment and now had the ability to approach doctors in private practice regarding his condition. Three years later ,November 2011, he approached an Orthopedic Surgeon Dr. Olivier who considered his hospital file and advised him that he was infact disabled and his condition was caused by the negligence of the hospital which initially treated him.

June 2012, Mr. Loni instituted a claim for damages against the MEC for health, who then raised a special plea for prescription in terms of section 12 (3) of the Prescription Act. The High Court upheld the special Plea on the grounds that had he had previously long acquired the necessary knowledge to institute proceedings, he was in pain, the wound was oozing pus, limping and he was in possession of his medical file. He then appealed to a full bench and to the Supreme Court of Appeal. In both instances his claim was dismissed.

The Constitutional court in this matter applied the Principle formulated in the case of Links and held that “the applicant should have overtime suspected fault on the part of the hospital staff. There were sufficient indicators that the medical staff had failed to provide him with proper care and treatment, as he still experienced pain and the wound was infected and oozing pus, with that experience he could have not thought or believed that he had received adequate medical care treatment. Furthermore since he had been given his medical file, he could have sought advice at that stage. There was basis for him to actually wait for more than seven years to do so.

The court further held that the objective test applied in the lower courts and in term of section 12 (3) of the Prescription Act was properly applied and established that a reasonable person in the position of Mr. Loni would have realized that the treatment and care received was sub-standard. The judgement, further noted that Mr. Loni had all the necessary facts at his disposal by being in position of his full medical record relating to his treatment or the lack thereof. He also had personal knowledge of his maltreatment and that was at that stage in a position to determine that he had a claim. This was the very same information which propelled him to seek medical advice, and ultimately institute the legal proceedings against the MEC.

In addition the court held that, “it is clear, that long before the Applicant’s discharge from the hospital in 2001 and certainly thereafter, the applicant had knowledge of the facts upon which his claim was based. He had knowledge of his treatment and the quality or (lack thereof) from his first day at the hospital and had suffered pain on a continuous basis subsequent thereto. The fact that he was not aware that he was disabled or had developed an osteitis is not relevant consideration.”

But how does one simply without proper skill/ knowledge remove a bullet which would have otherwise been removed upon admission, then return to the hospital without raising any suspicions of the treatment received, only to be informed that you are fine?. This is indicative enough to raise concerns regarding the treatment received and ultimately seek sound advice.

The court applied the objective test and the principles developed in Links case and held that the applicant’s claim had prescribed and he had the acquired the necessary knowledge to institute a claim timeously. Based on this judgement is it worth noting that what constitutes deemed knowledge in terms of section 12 of the Prescription Act is determined by taking into consideration the facts and circumstances of each case.

By

M Kirchner